Royal Charters & Letters Patent: The Bureaucratic Instruments Of Dispossession In Western Australia

1. Executive Prerogative Instruments: Charters & Letters Patent

The British colonisation of Western Australia was orchestrated through a sequence of executive prerogative instruments: Royal Charters, Letters Patent, and Order-in-Council instructions issued directly by the British monarch.^[1] Unlike legislative acts passed by a representative parliament, Letters Patent were unilateral executive decrees drafted in bureaucratic secrecy within the Colonial Office in London.^[2] Through these documents—most notably the 1829 Instructions to Captain James Stirling and the 1830 Royal Commission appointing him Governor—the British Crown purported to create colonial boundaries, establish civil and military command, and grant away vast tracts of Indigenous territory.^[3]

2. The Eradication of Protective Clauses in Western Australia

A critical constitutional comparison reveals the unique brutality of the Western Australian colonial instruments.^[4] When the British Crown issued Letters Patent establishing the Province of South Australia in 1836, humanitarian reformers in London succeeded in inserting an explicit protective guarantee: the Letters Patent explicitly commanded that nothing in the order should affect or interfere with the rights of Aboriginal inhabitants to their land.^[5] In tragic contrast, the Letters Patent and Royal Instructions for Western Australia contained zero protective clauses for the Bibbullmun people.^[6] Stirling was granted unrestricted executive authority to survey and grant land to private syndicates, incentivizing immediate violent land seizures.^[7]

3. Statutory Duplicity: The 1829 Swan River Act

The statutory basis of Western Australia was enacted by the British Parliament through the 10 Geo IV, c 22 (the Swan River Act 1829).^[8] Titled 'An Act to provide until the Thirty-first Day of December One thousand eight hundred and thirty-four for the Government of His Majesty's Settlements in Western Australia on the Western Coast of New Holland', this statute authorised the King in Council to establish laws and institutions for the colony.^[9] Notably, the statute made zero mention of the Indigenous inhabitants, treating an ancient, densely populated nation as non-existent. This statutory erasure allowed colonial governors to govern through summary proclamations, hanging warriors and seizing water soaks under martial decrees.^[10]

4. Challenging the Legitimacy of Executive Dispossession

Modern administrative and constitutional law recognises that executive prerogative instruments cannot unilaterally extinguish fundamental human rights or pre-existing property titles.^[11] Letters Patent issued in London possessed zero domestic validity over an unvanquished sovereign nation that had never submitted to the Crown.^[12] In contemporary native title and sovereign treaty claims, Bibbullmun legal scholars argue that these archival documents represent evidence of unilateral state aggression rather than legitimate constitutional governance, providing compelling historical grounds for sovereign restitution.^[13]